Injured Employees Can Receive Permanent Partial Disability Benefits through Virginia Workers Compensation for Loss of or Loss of Use and Function of the Injured Body Part

 

When you’re hurt on the job in Virginia you may be entitled to many types of workers compensation benefits. These include temporary total disability, temporary partial disability, and lifetime medical benefits. But it’s permanent partial disability benefits, also known as PPD benefits, that come closest to providing compensation for permanent disability, pain, and suffering due to your work-related injuries. PPD benefits can be a significant source of compensation for you and your family after a work accident.

 

This article explains what permanent partial disability benefits are, which injured workers are entitled to them, and how you can conduct discovery and develop the evidence in your case to maximize the amount of PPD benefits you’re owed in Virginia.

 

If you have more questions or comments after reading this article about Virginia permanent partial disability benefits, contact workers compensation attorney Corey Pollard for a free consultation. And don’t forget to check out our article with Answers to Virginia Workers Compensation Frequently Asked Questions so that you’re ready to take on the insurance company after an industrial accident.

 

What are Permanent Partial Disability Benefits?

 

A permanent disability is any lasting disability from your work-related injury or occupational illness that affects your ability to perform activities of daily living and to earn a living. In Virginia permanent partial disability (PPD) benefits are payable to injured employees who are not totally disabled from all work, but who have some type of permanent impairment, functional loss, amputation, or who are only capable of returning to light duty work. PPD benefits are also available for scarring and disfigurement due to surgery, burns, fractures, or lacerations.

 

There is no pain and suffering in workers compensation. The Workers Compensation Act, however, permits permanent partial disability benefits for pain when an injured worker shows actual functional loss of use because of the pain or some other accident related cause. An injured worker must show that the pain is a specific inhibiting factor causing loss of use of the injured body part.

 

How are Permanent Partial Disability Benefits Calculated for Virginia Workers Compensation?

 

Virginia uses the scheduled loss approach to awarding permanent partial disability benefits. This is the most common approach to PPD benefits in the United States, with more than 40 states using a scheduled loss approach in their workers compensation systems.

 

Under a scheduled loss approach the Workers Compensation Act contains a schedule, or list, of body parts. If an injured worker suffers the loss of the body part, or the loss of use or function of the body, on the list then he or she is entitled to permanent partial disability benefits.

 

Virginia Code Section 65.2-503 governs workers comp claims for PPD benefits. It allows an injured worker to seek permanent partial disability compensation for the loss of a thumb, finger, toe, hand, arm, foot, or leg. You do not have to lose the body part completely to receive PPD benefits. You only have to establish some loss of functional ability because of your work accident.

 

The permanent partial disability statute provides for PPD benefits for vision loss, hearing loss, severely marked disfigurement, byssinosis, and pneumoconiosis, including silicosis and asbestosis.

 

Virginia’s PPD statute establishes a conclusive presumption that disability will last for the number of weeks specified in the statute. Here are the number of weeks assigned to each injured body part and condition for PPD in Virginia:

 

 

  • Thumb: 60 weeks

 

  • Index finger: 35 weeks

 

  • Second finger: 30 weeks

 

  • Third finger: 20 weeks

 

  • Little finger: 15 weeks

 

  • Big toe: 30 weeks

 

  • Other toes: 10 weeks

 

  • Hand: 150 weeks

 

  • Arm: 200 weeks

 

  • Foot: 125 weeks

 

  • Leg: 175 weeks

 

  • Loss of Vision: 100 weeks

 

  • Byssinosis: 50 weeks

 

  • Pneumoconiosis: 50 to 300 weeks depending on the state of your silicosis or asbestosis

 

As you can see, some work injuries are given greater value than others in Virginia. This leads to discrepancies in settlement amounts and Virginia PPD awards. The higher the value placed on your injury by the General Assembly, the more your case is likely worth.

 

PPD Calculation

 

When you reach MMI your attorney will write a detailed letter to your treating physician. The letter will ask for several things, one of which is a permanent impairment rating. A permanent impairment rating tells the percentage loss of use of the injured body part.

 

In Virginia your weekly wage loss compensation rate is a fraction of your pre-injury average weekly wage. The number of weeks of benefits at this rate is taken from the PPD schedule and multiplied by your average weekly wage and percentage impairment. This is how you calculate the amount of PPD benefits you’re entitled to in Virginia

 

For example, an injured employee hurts his right shoulder on the job. When that employee reaches maximum medical improvement his treating physician sends him to an examiner who states the employee has a 40% permanent impairment to the right arm because of the shoulder injury. The treating physician then reviews the rating and determines it is correct.

 

If that employee earned $1200 per week before the work accident, he would receive $64,003.20 in permanent partial disability compensation (a compensation rate of $800.04 x 200 weeks x .40).

 

Does Virginia Workers Compensation Pay PPD for Back, Neck, and Spinal Cord Injuries?

 

Though back and neck injuries are some of the most common types of workplace accidents in Virginia, there is no provision in the Workers Compensation Act that provides for permanent partial disability benefits for back injuries, neck injuries, kidney injuries, brain injuries, or the loss of teeth.

 

The Commission will, however, award permanent partial disability compensation if your back or neck injury results in permanent disability to a body part found in Virginia Code Section 65.2-503. For example you may receive PPD benefits for a back injury if it causes loss of use of your legs and PPD benefits for a neck injury if it causes loss of use of your arms or hands.

 

When Should I File a Claim for Permanent Partial Disability Benefits?

 

In Virginia permanent partial disability benefits are not payable until you reach maximum medical improvement (MMI). There is no time limit on how long you have to reach maximum medical improvement. Some injured workers reach MMI a few weeks or months after the accident. Other injured workers take several years to reach MMI because they require conservative treatment, surgery, and pain management for their work injuries.

 

We recommend filing a claim for workers compensation seeking permanent partial disability benefits when you file your initial claim. This way you do not have to worry about satisfying the workers comp statute of limitations. Just ask the Commission not to docket your PPD claim for a hearing until you reach MMI.

 

How Do I Prove Permanent Partial Disability Due to Work Injuries?

 

The injured worker has the burden of proof in a claim for permanent partial disability under the Virginia Workers Compensation Act.

 

To receive PPD benefits, you should demonstrate the following:

 

1. That you have reached maximum medical improvement (MMI) for your work-related injuries. This is done by having your treating physician write a narrative report or testify that you have reached MMI. The Commission will not take your word for it.

 

2. A disability rating that assigns a level of permanent impairment to the injured body part and explains the rationale behind the finding. Usually this is done by having a physical therapist who specializes in functional capacity evaluations examine you, then provide a rating. Your attorney will then discuss the rating with your treating physician and ask him or her to sign off on the disability rating. You need to have a doctor sign the permanent impairment rating to give yourself the best chance of receiving permanent partial disability benefits.

 

3. That you are unable to use the injured body part as well as you could before the injury. This is done through testimony at your workers compensation hearing or an affidavit explaining all your ongoing symptoms and limitations.

 

Sometimes you can receive PPD benefits without attending a hearing. If your permanent impairment rating comes from a trusted and credible examiner, then the employer and its insurance company may offer an agreement award providing for permanent partial disability benefits. The Commission will then enter an Award Order providing you with compensation for permanent disability.

 

What is a Disability Rating for Permanent Partial Disability?

 

A disability rating, also known as an impairment rating, is a percentage rating which describes the loss of the permanent use of the body part injured in the industrial accident. In workers comp we call it a PPD rating.

 

Though not required under Virginia law, we recommend obtaining an impairment rating using the AMA Guides to the Evaluation of Permanent Impairment. The AMA Guides were originally published in the Journal of the American Medical Association (JAMA) and have been updated over the years. There are several editions.

 

The AMA Guides provide a standardized tool to convert medical information about permanent impairments due to work related injuries into numerical values. Some people have criticized different aspects of the AMA Guides, but they are still widely used. The Social Security Administration (SSA) and the Departments of Veterans Affairs (VA), however, use their own systems to determine permanent disability.

 

Who Pays for the PPD Rating?

 

Sometimes the employer and insurer will pay for you to undergo a functional capacity evaluation (FCE) to include a permanent impairment rating. But this is optional. The employer does not have to pay for a permanent disability rating under the Virginia Workers Compensation Act because an impairment rating is not considered medical treatment covered under a lifetime medical award.

 

It’s both good and bad that the Act does not require the employer to pay for a permanency rating. It’s bad because obtaining a permanent partial disability impairment rating is expensive. It’s good because you can choose which examiner evaluates you and provides the PPD rating. An experienced workers comp attorney likely knows which disability examiners are more claimant friendly, which means they give higher ratings than the insurance company favorites, and have credibility with the Workers Compensation Commission.

 

What if the Employer and its Insurance Company Disagree with My Permanent Partial Disability Rating?

 

The insurer will likely disagree with the impairment rating that you receive from the examiner your attorney sent you to. This is business as usual. Many claims adjusters and defense attorneys assume that if you chose the doctor, then the permanent partial disability rating overstates and exaggerates your permanent functional limitations.

 

In response the insurance company may send you to a doctor of their choosing for an independent medical examination (IME). Don’t be surprised if the IME doctor provides a report that includes a permanent impairment rating that is much lower than the rating you received from the first doctor you went to.

 

If there is a dispute over your level of permanent impairment due to the work injury, then you’ll go to a hearing before the deputy commissioner. After the hearing the deputy commissioner will either:

 

  • Average the two impairment ratings to come up with a new permanent impairment rating on which your permanent partial disability benefits are based; or
  • Find that one of the impairment ratings is more persuasive than the other based on your testimony and the underlying medical records, and award PPD benefits based on the more persuasive impairment rating.

 

Either side may appeal the decision to the full Workers Compensation Commission.

Can I Receive PPD Benefits if I Don’t Miss Time from Work?

 

Yes. You can receive PPD benefits even if you miss no time from work because of your industrial accident.

 

Can I Receive Permanent Partial Disability Benefits if I Return to Work?

 

Yes, you can receive permanent partial disability benefits in Virginia if you return to work. It doesn’t matter whether you return to regular full duty employment or to light duty work with permanent restrictions, PPD benefits are still available.

 

Employers and insurance carriers have argued that an injured employee should not receive PPD benefits if he or she is capable of returning to some form of employment. But the Court of Appeals of Virginia and the Commission have rejected that argument.

 

In Cross v. Newport News Shipbuilding & Dry Dock Co., 21 Va. App. 530, 465 S.E.2d 598 (1996), the court made it clear that PPD benefits are compensation for the loss of or loss of use of a scheduled body part. PPD benefits are not awarded for loss of earning capacity.

 

A few years later the Court of Appeals used a different phrase in reaching the same decision. In Morris v. Virginia Retirement Sys., 28 Va. App. 799, 508 S.E.2d 799 (1999) the court found that PPD benefits are for the loss of “human capital.” They are not contingent upon an injured worker’s ability or inability to return to employment after an industrial accident.

 

The Commission may, however, consider your ability to work when determining the extent of your loss of use of the injured body part and permanent partial disability. For example, the Commission may give more weight to a lower permanent impairment rating if you’ve shown an ability to work and use the injured body part in employment. See Virginia Oak Flooring Co. v. Chrisley, 195 Va. 850, 80 S.E.2d 537 (1954).

 

Can I Receive Workers Comp Permanent Partial Disability if I Have a Pre-Existing Condition or Prior Injury?

 

Many injured employees, especially those of you who have spent your life working in physically demanding jobs, may have a preexisting condition or prior work injury. But you can still receive PPD benefits for the most recent work injury even if you have prior impairment.

 

The Commission has held that when an employee suffers loss or further loss of use of a body part already impairment because of a prior work injury or a cause not related to his or her work, the percentage of loss of use prior to the industrial accident will be deducted in determining the amount of the PPD award. See Miller v. Wilson Laurel Farms, Inc., 52 O.I.C. 178 (1970).

Are Permanent Partial Disability Benefits the Same Thing as a Settlement?

 

Because PPD benefits are paid when you have reached MMI and stopped receiving temporary total disability benefits for wage loss, some people believe that an award for permanent partial disability benefits is the same thing as receiving a lump sum workers compensation settlement. This is not true. Your case remains open after receiving PPD benefits and you can negotiate a separate settlement.

What Should I Do if My Permanent Limitations Prevent Me from Returning to Work?

 

If you have reached MMI and received an award for permanent partial disability benefits, but are still unable to return to work because of your industrial accident or occupational disease, you may qualify for other types of disability compensation.

 

Depending on how many injuries you suffered in the work accident and the impairment rating given for each injury, you may qualify for permanent total disability under the Workers Compensation Act.

 

You may also be entitled to Social Security Disability Insurance (SSDI) benefits.

 

The Social Security Administration (SSA) evaluates claims for disability insurance benefits using a different analysis than workers comp. And it does not consider causation unless alcohol or substance abuse is causing your impairment. Depending on your age, education, and transferable job skills, you may qualify for SSDI benefits after a disability hearing before one of SSA’s administrative law judges.

 

As a Virginia Beach disability lawyer and Richmond Social Security attorney, I regularly help injured and disabled workers qualify for PPD and SSDI benefits at the same time. You do not have to pick one type of disability benefit or another. You can receive both.

 

Amount of Permanent Partial Disability Benefits

When you reach MMI your attorney will write a detailed letter to your treating physician. The letter will ask for several things, one of which is a permanent impairment rating. A permanent impairment rating tells the percentage loss of use of the injured body part.

In Virginia your weekly wage loss compensation rate is a fraction of your pre-injury average weekly wage. The number of weeks of benefits at this rate is taken from the PPD schedule and multiplied by your average weekly wage and percentage impairment. This is the amount of PPD benefits you’re entitled to.

For example, an injured employee hurt their right shoulder on the job. When that employee reaches maximum medical improvement their treating physician states they have a 40% permanent impairment to the right arm because of the shoulder injury. If that employee earned $1200 per week before the work accident, he or she would receive $64,003.20 in permanent partial disability compensation (a compensation rate of $800.04 x 200 weeks x .40).

 

Get Help with Your Virginia Permanent Partial Disability Claim (PPD) from an Experienced Workers Comp Attorney

 

Virginia PPD claims are rarely straightforward. An experienced lawyer can help you increase the amount of benefits you receive for permanent loss of use, amputation, loss of function, disfigurement, or scarring. If you’ve sustained permanent injury because of your Virginia work accident, attorney Corey Pollard will help by:

  • Working with your treating physician to develop a plan to treat your permanent loss of use or loss of function of the injured body part.

 

  • Educate your treating physician on how the Virginia Workers’ Compensation Commission evaluates claims using the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides).

 

  • Explain to your treating physician what should be included in a disability report and impairment rating to increase your chance of receiving PPD benefits.

 

  • If your treating physician is unwilling to provide a PPD rating, find a claimant-friendly physician who will evaluate your physical abilities and provide a supportive permanent impairment rating.

 

  • Negotiate with the insurance company to increase your PPD benefits.

 

  • Present your PPD claim at trial, if necessary.

 

You have nothing to lose by calling us. Contact us today for a free consultation. We’ve helped injured employees like you increase the value of their work injury claims. We represent represent all injured workers in claims arising out of all types of workplace accidents in and near Newport News, Hampton, Norfolk, Virginia Beach, Chesapeake, Richmond, Fredericksburg, WilliamsburgCharlottesville, Roanoke, Staunton, Prince William County, and Fairfax County. So no matter where you were hurt or what type of injury you suffered on the job, we can help you get the money and medical coverage you deserve.